The Founders

by Eric Posner

Let me say a few general words about one of Lou’s points, as endorsed and restated by Marty in his comment: “First, the Framers had seen up close what can happen when too much “emergency” power is concentrated in the executive (short answer: it wasn’t pretty), and therefore established substantial checks (mostly structural, but, esp. in the Bill of Rights and laws of war, also substantive) to prevent that from happening here.”

I’d like to explain why we don’t say much about the founders in our book, which was not inadvertent.

The writings of the founders are interesting for what they say about their times. These writings also identify some of the basic problems, tensions, and tradeoffs of constitutionalism, though these are all commonplaces today. It is understandable that people continue to honor the founders, read their biographies, and (in academia) occasionally read their writings. The founders belong to a very select group of practical politicians who both thought intelligently about long-term issues of governmental structure and could write clearly about their ideas, and, of course, they managed to found a relatively humane (putting aside slavery) and advanced (ditto) constitutional order that lasted more than seventy years, or maybe more than 200 years, depending on how you think about the post-Civil War settlement. About few other politicians can one say something remotely similar. But the claim that their writings can provide useful guidance about presidential power today defies common sense. The founders wanted a stronger executive than had existed under the Articles of Confederation, but not an executive that was too strong, and they all had different ideas about what too strong or too weak meant. As guidance for today, where circumstances are unimaginably different to boot, this is worse than useless.

(Gary Lawson has written a paper called “Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis,” 87 Boston University Law Review (2007) (forthcoming), which argues that our theory is consistent with the original understanding. I don’t know whether he is right or not, but the more important point for present purposes is that it illustrates the chronic indeterminacy of arguments based on founding-era materials.)

This type of preoccupation with the founders and what they would do today, reminds me of a science fiction book that I read as a child, I think it was The Foundation Trilogy by Isaac Asimov. If I remember correctly (and I might not), the premise of this book was that a great statistician had founded a new republic, and, using his statistical skills, had predicted all of the problems it would face for many years into the future, and how these problems could be solved. So whenever the republic’s leaders faced a problem, they needed only to play the video that the founder had stashed away somewhere. (For a reason that escapes me, they couldn’t play the video or portions of it until a crisis was upon them.) I like to think that Asimov was teasing constitutional lawyers, biblical literalists, and others of this ilk (and it is the same ilk, in terms of habits of mind, I think) who believe that they can solve today’s problems by examining an ancient text written by an all-seeing author.

I realize that when one makes constitutional arguments to courts one needs to dress up one’s arguments with citations to the framers (though I find it extremely unlikely that any of these arguments have had any influence on courts in at least the last one hundred years). But I don’t understand why people would think this would be useful for academic debate. If academics on both sides of the issue could agree to debate the presidency, emergency powers, and the constitution without mentioning the framers, this alone would count as progress.

6 Responses

Hey, far be it for to me to place inordinate weight on the views of the framers — or even their constitutional design. It’s certainly not my ordinary practice to limit myself to “originalist” arguments. On the other hand, I don’t recall that I, or any of my fellow “living constitutionalists,” has ever said anything quite like this: “If academics on both sides of the issue could agree to debate the presidency, emergency powers, and the constitution without mentioning the framers, this alone would count as progress.”

Wow. No mention at all, eh? They have nothing to offer, I suppose.

But here’s the really odd thing, Eric: Your co-author, not hours ago and in this very space, explained that because we — he and I, and you, and all other legal academics — have no real way of knowing what the “proper” balance is between liberty and security, or even about the most ideal distribution of governmental authority to set such a balance — since “it is so hard to know how much deference is correct” — “we plump for the historical level of deference.”

By “we,” I had assumed Adrian meant he and his co-author. But now, not only aren’t you “plumping” for the lessons of history — you’re urging us all not even to mention one of the most important eras of that history, the one that provided us with our constitutional structure!

If I may anticipate the counter-objection: Well, by “history,” we don’t mean the accommodations reached, and lessons learned, by those ancient wise men, who knew not of nuclear weapons and non-state terror organizations (but cf. pirates). “History,” as we mean it, began in about 1950.

Or am I missing an altogether different argument? Do you and Adrian disagree on the value of history in teaching us how to allocate such emergency responsibility (which would be perfectly fine, of course)? Or did I misunderstand Adrian?

P.S. Even if the “relevant” history began in 1950 — or any other date, for that matter — how would that help prove your point about the extent to which Congress and the courts should give the President carte blanche?

Best,

Marty

8.21.2007
at 1:15 am EST Marty Lederman

Well Eric, you are right about the the science fiction being the Foundation Triology by Asimov, but I tonk you are very mustaken here.

This isn’t a matter of what the founder think as much as it is of what the Constituion says, and the documnet has a history and a context. Setting aside all the standad arguments over interpretation,, there are nevertheless ceertain things that we can state with certainty. It was written in english in 1787 for example, and as you point out, it was intended to create a stronger executive than existed under the Confederation. I take it we can all agree that those are indisputable facts.

Well it was also written be people who eleven years before had revolted against George III for abuses of executive authority; it draws eheaveily on the ideas Montesquieu and Locke; and virtually every educated person at the time was well acquainted with the history of the preceding century, in particular the Glorious Revolution of 1688 which deposed James II and the English Civil Wars, which resulted in Charles I lkosing his head — both for abuses of executive authority, including some that were far worse than those of George III.

I think we can all agree that those are facts too, and on those facts, I assert:

a) It is impossible to suppose that the Constitution grants the President more authority than George III, James II, or Charles I.

b) You don’t have to exceed those limts to have an effective executive.

And I have a hard time believing that anyone would seriously argue otherwise.

Then there is this idea that everything is different becasue of 911, which is just absurd. Twenty years before the Revolution this nation went through the nastiest war it ever fought, the French and Indian War. The English Civil War was a religious war where a good many of the particpant believed that their immortal souls were at stake. The inquistion that lasted for centuries was nothing less than a war against Satan.

There’s nothing different about the “war” on “terror” aside from the details of time and place. It’s mostly a hysterical overreaction — tanbd the results speak for themselves.

Eric the rebel puts his finger on a very sore point. Without some benchmark that reassures us lawyers that we are not just fools and idiots posturing for the masses, we are just fools and idiots posturing for ourselves. Law levitates itself by this posturing (of both flavors), but in doing so it surrenders (to a certain extent) its capacity to solve problems. Ah well, this is ok for the US, where we believe in the strength of our legal and political system as it is. Thus our fascination with our founding fathers. Even Lincoln went back to them to find out a way out of the states rights/slavery mess that the founding fathers tolerated. Cleverly he ignored what they said and did not say when it suited his purposes. But we should not now be fooled into thinking this is wisdom that we can share beyond our borders. It is our peculiar history that we cannot explain except to argue that we are lucky. This, I think, is a percolating tragedy of our times as more and more problems go global, but as US lawyers we cannot.

8.21.2007
at 5:17 am EST Michael Gallagher

Eric,

Bravo. Future civilizations looking back on ours will put the fetishization of the Founders in the same category as Delphi. I’m sure psychologists have some explanation for the phenomenon, but with even minimal perspective it looks bizarre.

8.21.2007
at 10:34 am EST Peter Spiro

The intents of the Founders only concern me to the extent that they are required to interpret unclear sections of our law and Constitution. Unfortunately, this tends towards less historical examination and more projection of personal beliefs onto men who have been dead for almost two centuries.

8.21.2007
at 11:15 am EST Matthew Gross

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